stability

Garca-Villegas, M and Espinosa, J R 2015 The Geography of Justice:

Assessing Local Justice in Colombias Post-Conflict Phase. Stability:
International Journal of Security& Development, 4(1): 41, pp.121,
DOI: http://dx.doi.org/10.5334/sta.gc

RESEARCH ARTICLE

The Geography of Justice: Assessing Local

Justice in Colombias Post-Conflict Phase
Mauricio Garca-Villegas* and Jose Rafael Espinosa
This article combines descriptive empirical research with theoretical reflections to
offer policy guidelines on what the role of local justice institutions in Colombias
post-conflict phase should be. The article is divided into two parts. In the first,
we present empirical evidence to illustrate the ways in which justice operates
differently across the territory. In addition to illustrating these disparities, we
also demonstrate the connection between these disparities and some phenomena
relevant to understanding the Colombian conflict. Based on these findings, the
second part of this article defines the state-building challenge confronted by the
Colombian State during the post-conflict phase. Following this part, we propose
a solution to this state-building challenge: the State must adopt a combination
of efficacy and justice, and we provide guidelines on how a post-conflict justice
system can operate to achieve that combination.
Introduction
Over the last ten years in Colombia, there
has been an increasing interest in studying
the role of institutions relating to both the
countrys economic development and the
construction of democracy. According to
substantial literature on the subject, institutions have a central role in democracy-building. However, various parties question the
dimensions of this role and the way it relates
to other variables such as violence, culture,
and the market (Acemoglu & Robinson 2012;
* Professor at Universidad Nacional in Bogot,
Colombia; Fellow at Institute for Legal Studies
at the University of Wisconsin-Madison;
Founding Member of the Center for Law,
Justice and Society-Dejusticia, Colombia
mvillegas@wisc.edu
Associate Researcher at Center for Law,
Justice and Society-Dejusticia; Graduate
student at Harris School of Public Policy
University of Chicago, United States
jespinosa@dejusticia.org

Gonzlez, Bolvar, & Vsquez 2003; Gutirrez

2010; Lpez 2010; Rodrguez & Portes 2012;
Romero 2003).
This article analyzes the role of state institutions at the local level in Colombia. The
focus is not on exploring national security or
political regime issues (although these topics are mentioned), but rather on the implications stemming from state incapacity or
even deficiency in terms of the populations
rights.
The argument goes as follows: populations who live in the peripheral areas of
Colombia, where state institutions are weak
or non-existent, are permanently vulnerable
to violations because they are not served by
institutions that uphold their rights. These
are not exceptional cases of communities
lost in the national geography, but rather
are part of a widespread rights violation.
According to calculations presented in The
Right to a State (Garcia Villegas and Espinosa
2013), the State is not present in 60 per cent

Art.41, page 2 of 21

Garca-Villegas and Espinosa: The Geography of Justice

of the national territory, an area that is inhabited by more than six million people. These
people lack what Hannah Arendt called the
right to have rights the right to live in a
political community in which their rights are
recognized and protected.1 The central state
owes a historical debt to these people which
must be paid and, from a constitutional
point of view, represents a systematic and
flagrant violation of citizen rights similar to
(or possibly worse than) violations that the
Constitutional Courts jurisprudence defines
as an unconstitutional state of affairs.
In The Right to a State we used the expression institutional apartheid to describe
what is currently happening in broad areas
of the national territory in which the State
is unstable or non-existent. As a result, the
population is affected by the fact that their
rights are not recognized or protected.
Although the situation does not correspond
exactly to the origin of the word apartheid,
which is closely linked to the South African
context, the book defends the idea that even
though the situation in Colombia is different, the discriminatory effects are similar.
Institutional abandonment of large portions
of the country results in segregation of the
people who live there. While in South Africa
segregation was based on the prevalence
of one race over another, in Colombia it is
founded on the prevalence of some regions
over others.
In this article we answer the following
question: given the current peace process
between the Colombian Government and
the guerrilla group, and given that eventual
agreements from that process will effect
an enormous institutional challenge in the
peripheral regions of Colombia, how can
the local state be strengthened in order to
address that institutional apartheid? In addition, what role does justice play in such an
institutional strengthening plan?
This article is divided into two parts. In
the first, we present empirical evidence to
illustrate the ways in which justice operates
differently at the regional level. In addition
to illustrating geographic disparities in that

operation, we also demonstrate the connection between the disparity and some
phenomena relevant to understanding the
Colombian conflict. Based on these findings,
the second part defines the state-building
challenge confronted by the Colombian
State. We defend the idea that in order to
confront this challenge, the State must adopt
a combination of efficacy and justice, and we
provide guidelines on how a post-conflict
justice system should operate.
The performance of (formal) local
justice
In this first part, we present the results of an
empirical investigation that demonstrates
the disparate functioning of (formal) justice
in the country. We constructed an indicator
on local justice performance that evaluates
both presence and efficacy of formal justice
institutions.
Presence

This first section evaluates the presence of

justice representatives in the Colombian
regions. It is a formal measurement that
takes into account the presence of justice
representatives in the territory and gives an
idea of the geographic distribution of judges
in Colombia, but it does not judge the efficacy or efficiency of their presence.
The following Map 1 shows the distribution of judges in the Colombian territory in
July 2012, taking into account the population and size of the municipality.2 In order
to address the dispersion of the data, we
grouped municipalities based on their differences from the national average.3 In this case,
the municipalities without data are nonmunicipalized and their jurisdiction is the
responsibility of neighboring municipalities.
As this Map 1 shows, the presence of
judges is concentrated in the center of the
country, plus two small niches: in the north
around Cartagena and Barranquilla, and in
the south in Pasto and the surrounding area.
The presence of justice representatives
should not only be analyzed in terms of
quantity, but also in terms of quality. The

Garca-Villegas and Espinosa: The Geography of Justice

Art.41, page 3 of 21

Map 1: Presence of Judges. Source: Superior Judicial Council (Consejo Superior de la Judi
catura CSJ), National Administrative Statistics Department (Departamento Administrativo
Nacional de Estadistica - DANE), Agustin Codazzi Geography Institute (Instituto Geografico
Agustin Codazzi IGAC) (2012).

Art.41, page 4 of 21

Garca-Villegas and Espinosa: The Geography of Justice

Colombian State created the justice career

track to guarantee the quality of justice representatives. In theory, only the best judges
occupy public positions and rarely is (e.g.
in the case of temporary licenses) the office
occupied by provisional judges. The justice
career track mechanism also serves to guarantee the judges independence with respect
to political representatives and other judges.
This political independence is due to the fact
that provisional representatives are named
directly by the magistrates of their respective
hierarchical superior tribunal.4
The judicial career track similar to many
public policies has had a different impact
in the various regions. We constructed a
database of the provisional nature of judicial
offices in the country based on information
collected from administrative courts of the
sectional judicial councils.5
The following Map 2 illustrates how provisionality is distributed across the country.
This map demonstrates two noteworthy aspects of the way in which the justice
career track operates in Colombia. First,
the justice career track does not function
in a great part of the territory. According
to information provided by the sectional
judicial councils, temporary judges occupy
31per cent of justice posts.6 In regional
terms, the percentage of all provisional
judges is equal to or greater than 80 per
cent in 425 municipalities (from a total of
1103). Second, the map shows that provisionality is not randomly distributed across
the country. As in previous maps, provisionality associated as much with a lack of
merit as with the risks of clientelism tends
to concentrate in peripheral municipalities.
Efficacy

Second, we measure the efficacy of the justice system at the regional level, understood
as the systems capacity to reach expected
objectives. We limit ourselves to the efficacy
of the criminal system for two reasons: first,
the efficacy of criminal justice (as opposed to
civil justice, for example) is a good indicator

of state capacity to confront other social

actors who compete for the monopoly on
the use of force (Garcia-Villegas 2008); second, the criminal system is the only processing system in Colombia to offer a modicum
of trustworthy information about its own
management.7
In addition, we are focusing on the justice
systems efficacy in sanctioning homicides
that occurred in each municipality. There
are three reasons why we focus exclusively
on homicides. First, they are the most serious crimes and as such should be prioritized
in judicial processing. Second, homicides are
the most registered of crimes (as it is more
difficult for a homicide to go unnoticed than
a scam, for example). Finally, by limiting ourselves to homicide, we dodge an objection
that could be made about our indicator, that
is, whether the desirable result of processing
is always a sentence. For some crimes, such
as stealing a carton of milk, this is a point
of discussion in judicial and criminal policy
debates, as well as in the philosophy of law.
In the case of homicides, however, the attorney cannot avoid formulating a charge, nor
the judge a sentence, because of the seriousness of the crime.
To measure the performance of justice, we
have therefore constructed an efficacy rate.
This indicator measures the percentage of
cases entered into the system for which a sentence is formulated. In addition, when evaluating the number of sentences compared
to the total entries, it takes into account
the magnitude of the justice demand in the
municipality.8
It is necessary to make three methodological clarifications before moving on to
the results. First, of the total municipalities,
those for which there is a lack of complete
information (number of entries, formulation
of charges, and formulation of sentences),
or those whose information suggests that
there was an error (e.g. more sentences
than charges or entries) were excluded. This
reduced the number of municipalities from
1103 to 848.

Garca-Villegas and Espinosa: The Geography of Justice

Art.41, page 5 of 21

Map 2: Provisional Nature of Justice Offices. Source: Sectional judicial councils (Consejos sec
cionales de la judicature) (2013). Authors own calculations.

Art.41, page 6 of 21

Garca-Villegas and Espinosa: The Geography of Justice

Second, due to the availability and quality

of information, we limited ourselves exclusively to criminal processes under the accusatory penal system (Law 906 of 2004). For
each municipality, we added existing information from the systems period of validity,
and based the efficacy analysis on information for each municipality. 9
Third, we measured the level of efficacy in
the sanction of homicides that took place in a
determined municipality. This does not necessarily mean that the criminal process took
place in that municipality. Instead, it means
that we are not measuring justice that physically operates there, but rather justice that is
effectively applied there. This does not represent a problem for the research. We are interested more in measuring the extent to which
the system fulfills its purpose in the territory
than in physical institutional presence.
Map 3 shows the spatial distribution of
the efficacy indicator.10
As the map shows, high and very high
efficacy tends to concentrate in the departments of Huila, Casanare, Tolima, the coffee region, to a lesser extent in Antioquia,
Cundinamarca, Boyac, Santander, and a
few municipalities in Bolivar and Atlntico.
Meanwhile, low and very low efficacy is
concentrated in Nario, Putumayo, Casanare,
Meta, Vichada, Choc, southern Crdoba,
Catatumbo, southern Bolvar, and La Guajira.
The majority of municipalities with low
and very low efficacy are in corridors that
share various features including: i) presence
of armed groups; ii) areas of illegal crops;
iii) areas of input transport for the production of cocaine; iv) presence of illegal mining;
and v) low quality of institutions. The most
noteworthy trait of the map is that these factors operate in a context of local-level judicial inefficacy, which allows these activities
to continue at low criminal cost.
These maps do not always allow for definitive conclusions to be made about the institutional capacity in a municipality. There are
situations in which the justice and municipal government indicators are very good,

but a more detailed analysis of the context,

the history, and the internal power relations
of the municipality show that institutional
power only appears strong. For example,
the department of Casanare an example of
institutional seizure or coopted reconfiguration of the State seems to have strong
justice indicators, but in reality, they are
not as strong as might be expected (Garay,
De Len, & Salcedo, 2010; Garca Villegas &
Revelo Rebolledo, 2010; Hellman, Jones, &
Kaufmann, 2000).
The performance of local justice
Until now, this paper has examined how the
justice systems presence and efficacy in the
prosecution of homicides are distributed.
Based on this analysis, we constructed a
global indicator of local justice performance,
taking these two dimensions into account.
The indicator is composed of two variables:
presence of judges and an efficacy rate for
each municipality.
The indicator includes a scale from 0 to
100, where 100 corresponds to the highest
score and 0 to the lowest. This score was
obtained by weighting the qualifications
from the two components of the index,11
assigning a weight of 60 per cent to efficacy
and 40 per cent to presence. We made this
methodological decision because we believe
that even though presence is an important
dimension of justice, in many municipalities
this presence is more nominal than real
just because there is a judge in a municipality does not mean that he/she imparts
justice. This was one of the conclusions
of Judges without a State (Garca-Villegas
2008). In this sense, a municipality with
fewer judges who are more effective would
be preferable to one with more judges who
are less effective.
The different possible scores of the index
are grouped into five categories, which correspond to the five levels of local justice performance (see Annex 1). The Table 1 shows
how the municipalities at different levels of
the index are distributed.

Garca-Villegas and Espinosa: The Geography of Justice

Art.41, page 7 of 21

Map 3: Efficacy. Source: AGO (Fiscala General de la Nacin). Authors own calculations.

Art.41, page 8 of 21

Level

Garca-Villegas and Espinosa: The Geography of Justice

Number of
municipalities

%
Municipalities

Very low

136

16%

Low

239

28%

Medium

356

42%

High

97

11 %

Very high

20

2%

848

100 %

Total

Table 1: Municipalities by levels of local justice performance.

As Table 1 shows, the majority of municipalities (356) are distributed in the medium
level of local justice performance.12 The lowest category is comprised of 136 municipalities, a number greater than that of
the two highest categories put together:
97 municipalities are in the high category
while 20 are in the very high category. The
table also shows a noteworthy result: with
respect to the national average, more than
a third of the municipalities of the country
(375 of 848) have low or very low levels of
performance.
The following Map 4 shows these municipalities spatially distributed by category.
This map highlights patterns seen in
previous maps. The municipalities with
medium, high, and very high levels of
performance are found mainly in the center
of the country, and to a lesser extent in
the Caribbean Coast, Valle del Cauca, and
the departments of Meta and Casanare.
On the other hand, the municipalities with
low or very low levels of justice performance tend to be located in the peripheries, especially in the departments of Nario,
Choc, Putumayo, Caquet, and Vichada. In
Crdoba, Magdalena, Atlntico, and Sucre
the low and very low performance of justice coincides with the most southern areas
of the departments, which are characterized
by difficult access, floods and challenging
transport channels which isolate the municipalities from regional centers.

Different expressions of local justice

performance in the territory
Justice does not operate in isolation in a
municipality. On the contrary, its performance is related to the context in which
the everyday workings of the justice system
take place. This section analyzes the relationships between the local justice performance
indicator and various socio-economic and
violence-related variables that we thought
relevant. We are interested in identifying
differences when comparing the justice
indicator with these other variables in different categories of the municipality. We can
thereby observe that municipalities with a
low or very low level of local justice performance present similar behavior in other
institutional dimensions. The disparate performances of justice are related to the existence of coca crops, forced displacement,
presence of illegal armed groups, percentage
of Afro-Colombians, and percentage of indigenous people.13
Graph 1 illustrates the relationship
between the average density of coca crops
in a group of municipalities and local justice performance.14 The difference in crops
between the five categories of local justice
performance (very high, high, etc.) is striking. Municipalities catalogued with low
and very low performances in terms of local
justice have an average of twelve per cent
and thirteen per cent crop density respectively (in other words, on average twelve to
thirteen per cent of each square kilometer
in these municipalities is dedicated to coca
crops), while in other municipalities the
density does not go above two per cent. The
performance of justice is weak where the
density of coca crops is greater.
This does not necessarily mean that in
municipalities with a very low justice performance there is more drug trafficking
than in other municipalities. There are simply more crops.
The differences in forced displacement15
between different categories of justice
are quite large, as seen in Graph 2. The

Garca-Villegas and Espinosa: The Geography of Justice

Map 4: Local justice performance. Source: SJC/AGO, own calculations.

Art.41, page 9 of 21

Art.41, page 10 of 21

Garca-Villegas and Espinosa: The Geography of Justice

Graph 1: Density of crops and levels of local justice performance. Source: SIMCI 2012;
Authorscalculations.

Graph 2: Average displacement rate by categories of local justice performance. Source:

Vice Presidents Office 20052011. Authors calculations.
municipalities with very low local justice performances have more than double the rate of
displacement when compared to those classified in the other four categories. The statistical results allow us to conclude that a lower
level of local justice performance implies a
greater number of displaced people.
The results found in relation to the coca
crop dynamics and to displacement are
convincing and reveal two facets of the
Colombian armed conflict. On the one hand,

the results allow for the identification of one

of the illegal armed groups greatest economic sources, and on the other, they reflect
the vulnerability of rights generated by the
conflict. Tragically, local justice is weaker in
areas with more coca crops and where displacement rates are greater.
These trends gave notable results. In general, municipalities with high and very
high levels of justice performance had a
lesser presence of illegal armed groups. In

Garca-Villegas and Espinosa: The Geography of Justice

municipalities with very high justice performance rates there was no paramilitary or
BACRIM (bandas criminales, former paralimitary groups) presence from 2000 to 2012.
The guerrilla presence comprised almost
a quarter of the overall presence of illegal
armed groups in municipalities of medium
justice performance rates and almost a fifth
of the presence of illegal armed groups with
low or very low performance rates. In
terms of guerrilla presence, there is a clear
negative relationship: the greater the local
justice performance, the lower the number of years of guerrilla presence. In terms
of paramilitary and BACRIM presence, the
result is different, because the municipalities with weaker justice rates are different
from those municipalities who experienced
the presence of these groups for a greater
number of years. Except in municipalities
with high levels of justice performance, the
paramilitaries and the BACRIM were present
no matter the institutional justice capacity. In general terms, whereas the guerrillas
aim to fight against the State, the paramilitaries appropriate or strategically use the
State (Garca Villegas & Revelo Rebolledo
2010; Lpez 2010; Romero 2003; 2007). It
is also worth noting that the BACRIM presence is greater than that registered by the
paramilitaries, which suggests that the
demobilization process did not reduce, but
rather increased, the presence levels of these
groups in the municipalities, as illustrated
in Table 2.
Category of justice

Art.41, page 11 of 21

These two results allow us to argue that

the presence of the guerrilla tends to congregate in municipalities with weaker justice,
while the paramilitaries or the BACRIM have
a more homogenous presence in municipalities, regardless of their justice performance
levels. This coincides with results shown in
previous research (Garca-Villegas 2008).
The bias in guerrilla presence and relative
homogeneity in paramilitary and BACRIM
presence allows us to address each groups
process of capturing institutions (or not). The
guerrillas have skirted to the periphery of the
country, where institutions are weaker, while
the paramilitaries have managed to stay in
important urban areas where they have used
justice to achieve their military and economic objectives.
In terms of ethnic composition, there
are important differences between the
five categories of the local justice index.
Municipalities with very low justice performance levels have greater levels of indigenous and Afro-Colombian people. Graph 3
shows that municipalities located in the lowest justice category have an average of 16 per
cent and thirteen per cent of Afro-Colombian
and indigenous populations respectively,
while in other justice categories the population does not rise above nine per cent and six
per cent respectively.
The municipalities with a very low level of
justice performance have greater numbers
of displaced people, greater hectare density of coca crops, and a greater number of

Number of years with illegal groups presence 20002012

Guerrilla

Paramilitaries
(20002006)

BACRIM
(20072012)

Very high

1.3

High

2.9

1.03

1.8

Medium

4.2

1.68

2.69

Low

5.3

1.66

2.3

Very low

5.1

1.4

2.3

Table 2: Presence of illegal armed groups broken down in years between 2000 and 2012.

Art.41, page 12 of 21

Garca-Villegas and Espinosa: The Geography of Justice

Graph 3: Percentage of Afro-Colombians and indigenous people by municipality by

category of local justice performance. Source: Dane 2012. Authors calculations.
indigenous and Afro-Colombian people in
their population. A similar phenomenon
occurs in terms of the presence of the guerrilla groups, which is found less often in
municipalities with high and very high levels of justice performance.
From Institutional Apartheid to the
Constitutional State: Local Justice
in the Post-Conflict Phase
Political institutions in Latin America are
embedded in a social and institutional
context much different from the modern
European state model, which the Latin
American countries have inherited. This
has, in part, resulted in the common disparity between norms and social realities that
has characterized Colombian institutional
life since time immemorial. The existence
of the modern state can be claimed when
the fulfillment of three conditions or basic
characteristics occurs: efficacy, legality, and
legitimacy (Bobbio 2005). The State in Latin
America has deficiencies in each one of these
three characteristics. For example, state efficacy is not always attained legitimately and,
on occasion, the legitimate state is incapable
of presenting itself to powerful individuals

and groups, be they legal or illegal. These

situations are particularly common in certain
spaces, generally (but not exclusively) located
in the periphery of the national territory.
Based on a constructivist, tiered, and pragmatic vision of known state institutions
(Garca-Villegas 2014; Migdal 2011; Portes
& Smith 2010; Rodrguez & Portes 2012),
we will now try to respond to the following
question: how can public policy address the
enormous challenge of incorporating uninstitutionalized areas of the country into
the social rule of law? What path must be
taken to respond to this challenge?16
This question is even more relevant today
as Colombia faces a post-conflict phase in
which opportunities to carry out historic
reforms will present themselves, as a result of
the eventual peace agreements. In effect, the
draft agreements published until recently
imply large-scale social, economic, and political development initiatives in the periphery
of Colombia. In concrete terms, the agreements foresee large-scale rural reforms, an
increase in political participation, and the
elimination of drug trafficking. To apply
these eventual agreements, however, there
must exist local institutions with the capacity

Garca-Villegas and Espinosa: The Geography of Justice

to implement the public policy necessary to

enforce the objectives of the agreements.
The design of these institutions and public
policies is still to be defined and will be the
subject of intense debate in years to come.
Discussions on the post-conflict phase often
assume that these peripheral areas already
have the institutional capacity to implement
the agreements, which is not true.
Until now, discussions on transitional justice in Colombia have focused mainly on the
dilemma between justice and peace. That
is, how to resolve the tension between the
need for accountability by those ultimately
responsible for crimes, and the need to compromise with these actors so that they abandon weapons and enter politics. This debate,
though fundamental, has been restricted
to a limited definition of justice. It understands justice exclusively as the prosecution
of those responsible or the guarantee of the
rights of the victims, and ignores the need
for justice dedicated to resolving daily conflicts that present themselves in transitional
areas. This is problematic because it ignores
the objective of social peace, a post-conflict
goal closely related to the success of the transition. For the post-conflict phase, we have
to think not only about the kind of justice
we implement to deal with those responsible from all sides of the conflict, but also
about which institutions will be required to
consolidate peace in the regions through the
resolution (formal and/or informal) of social
conflicts.
In order to respond to these questions, we
first look at three features of the modern
state that were mentioned at the beginning
of The Right to the State: efficacy, legality, and
legitimacy. Which path should we take, in
institutional terms, to arrive at an efficient,
legitimate, and legal state?
Given that the legitimacy of the constitutional state is attained through legality
and protection of citizen rights, here we
propose the concept of lega-timacy which
involves and coordinates both purposes
(legality and legitimacy). We assume that the

Art.41, page 13 of 21

constitutional state or, more precisely, the

social rule of law, pursues two fundamental or interdependent objectives: 1) efficacy,
and 2) lega-timacy.17
Each of the two axes in the following graph
(horizontal and vertical) represent the two
objectives mentioned in a continuum from
low to high. Based on these two axes, it is
possible to compare and contrast the different scenarios featuring state institutions, as
shown in the following graph.
Types of Institutions

The graph above demonstrates the wide

range of possible scenarios, from extreme
institutional weakness to extreme state
authoritarianism, passing through the social
rule of law (ROL), which possesses a type of
contained strength. This graph also illustrates how the vulnerability of many sectors
of the population can originate not only in
the excess of state power but also in its deficit. The constitutional state is therefore both
an effective and a contained power.
The ideal scenario is represented in the
upper right, where there is a maximum of
both variables. ROL is found there, with a
greater degree of efficacy and legitimacy.18
At the other end of the spectrum the
lower left we find the opposite of ROL
extremely weak institutions with little
lega-timacy. This area represents institutional apartheid (among other situations),

Art.41, page 14 of 21

Garca-Villegas and Espinosa: The Geography of Justice

a situation characterized by vulnerability and

discrimination against the population. Not
all of what falls under this area of extreme
instability can be characterized as institutional apartheid, due to the fact that not
all institutional weakness implies a severe
degree of discrimination. For example, in
some isolated areas inhabited by indigenous
communities, institutional incapacity is supplanted by strong community cohesion.
The two intermediate cases are explained
in the following way: the first, in the upper
left, combines a maximum of lega-timacy
with a minimum of efficacy. This situation is
more theoretical than real, given that it is difficult to conceive of a society under a nominal
state (that has no power) and in which events
occur in a legal and legitimate way (except
perhaps something close to anarchism). In
the far lower right we find authoritarian
institutions in which a maximum exercise
of power is combined with minimum legatimacy. This type of state maintains peace
and imposes order within the territory, and is
able to guarantee certain rights. However, it
does so without legitimacy or legality. Many
attempts to bring the State to the Colombian
periphery have been reduced to the creation
of this type of state.
It should also be added that these are
extreme cases and that, as the graph shows,
it is possible to imagine intermediate cases
(in fact, the Latin American and urban versions of ROL, in general terms, could be categorized as in the upper right square, but at
a point close to the center of the graph). It is
also important to acknowledge that it is not
always easy to spatially identify each case.
Here, we have said that institutional apartheid is a common phenomenon in the geographic periphery of the country. However,
this phenomenon exists in the cities, in marginalized neighborhoods and rural areas that
we could call internal peripheries, where the
social rule of law is relatively strong.
In addition, it is important to note that
institutional apartheid is not always apparent
and easy to detect. There are cases in which

legality, and some legitimacy, are found in

regions where institutions have been captured or coopted by armed or illegal actors.
This is the case of the mafia-state, which not
only adopts the appearance of legality, but
also defends and operates with the law while
distorting its meaning and using legality
to favor illegality. It is even possible that in
these cases, the population is overtaken. This
is an example of a state outside of constitutional order, which nevertheless follows its
judicial forms and routines. It also conceals
institutional capture which results in domination and oppression, perhaps worse than
that of the authoritarian state.
We therefore return to the question with
which we began this final section. How can
we transition from an institutional apartheid
state to ROL?
We have identified five paths, each one
of them represented by a line that unites
extreme institutional weakness to ROL. The
first of them, path A (the gray continuous line)
is defended by military regimes in Colombia
and Latin America, and conceives of the constitutional challenge as a task that starts and
ends with pacification of the territory, as
the imposition of order without legitimacy.
This path is not only unacceptable from an
ethical and legal point of view (as it sacrifices
the rights of one part of the population to
improve the conditions of the rest), but also
from an empirical point of view. Experience
shows that there is no guarantee that this
option will be successful. Indeed, the imposition of force without human rights, democracy, or control instead seems to reproduce
violence and institutional weakness in the
Latin American context.
The second path, B (in dotted gray), proposes to reach both objectives of ROL but
based on sequential logic in which efficacy
comes first. This path seeks to pacify the
territory first (expelling or defeating the
enemy) and then, only when this objective has been achieved, concerns itself with
the legality and legitimacy of the State.
The National Territorial Consolidation Plan

Garca-Villegas and Espinosa: The Geography of Justice

adopted by the national government seems

to have adopted this model (Garca Villegas &
Espinosa Restrepo 2012; Palou 2011). Once
pacification is achieved, a transition from
military to civilian government is realized.
The protection of the citizen is of the utmost
importance in this transition. Finally, when
this protection is consolidated, the third
phase of stabilization begins and economic,
social, and institutional development can be
consolidated.
Although path B is attractive from a military standpoint and in terms of creating
order, it has been demonstrated as nonconducive and even counterproductive
to the creation of ROL. In many cases, this
first stage of military domination translates
to serious human rights violations.
The third path, C, originates in a logic
contrary to the others. Instead of prioritizing efficacy, this path emphasizes legitimacy.
This path consists of introducing institutional reforms with evident legitimacy in
social environments characterized by institutional crisis. The expectation is that popular
support for the new institutions will result
from these reforms, and combined with their
intrinsic legitimacy, will serve to strengthen
state institutions. This perspective inspired
some of the institutional designs defined by
the 1991 Constitution, in particular, those
related to decentralization and citizen participation mechanisms (Gutirrez 2010;
Snchez & Chacn 2006). This path is a type
of democratism according to which democratic routines are enough to achieve social
rule of law. This assumes that democratic
legitimacy could remedy weaknesses in institutional capacity through the passage of
time and with the help of popular mobilization. However, after more than twenty years
of implementing the Constitution, the limits
and even dangers of this view have become
evident. It is not only probable that legatimacy did not bring efficacy in these areas
but that even worse, new democratic institutions were captured and corrupted by criminal organizations (Garca Villegas & Revelo

Art.41, page 15 of 21

Rebolledo 2010; Gutirrez 1996, 2010b;

Lpez 2010). It is worth noting the affirmation of Albert Hirschman (1977) according to
whom, not all good things come together.
The fourth path, D (see the continuous
line), supposes that it is possible to simultaneously construct all three levels of the ROL
building. This is the best path from the perspective of constitutional axiology (Garca
Villegas & Uprimny 1999). In practice, however, the situation poses many difficulties.
This path is feasible in territories in which
the State is more nominal than effective
and in which there is no competition from
another armed actor. However, what happens when the State finds itself in a territory
occupied by an armed actor that imposes its
law on inhabitants? In these cases, the first
task of the State consists of gaining military
control and monopoly on the use of force in
the area. This is what the international literature widely recommends: in the construction
of the State, security must be prioritized, but
with legality (Fukuyama 2004; Jensen 2008;
Ottaway 2002; Rubin 2008). Opening mechanisms of broadened political participation
without consolidating a minimum of efficacy
has translated to an increase in violence. The
literature, however, falls short of indicating
how to achieve this ideal combination of
security and legality. How can this minimum
of security be achieved within the constitutional framework?
Perhaps the response to this question would
be the creation of a fifth path, denoted as E.
Path E would recognize the practical need
for sequencing between the two objectives
pursued (efficacy and legality / legitimacy),
but would condition its success on the effective presence of the justice system in this
transition.
We have stated previously that in Colombia,
we must try to achieve three features of ROL
at the same time. This is a normative ideal
that should be maintained. However, in practice, absolute concomitance is frequently a
difficult goal to achieve. This is due to the
fact that there is a conditionality on these

Art.41, page 16 of 21

Garca-Villegas and Espinosa: The Geography of Justice

factors.19 Path E endeavors to respond to this

difficulty. It demands that military action targeting the reduction of armed actors in the
territory is accompanied by strong judicial
control directed at the protection of fundamental rights of those who live in the territory in which the military operations take
place. Some aspects of the other objective
(lega-timacy), such as broadened citizen
participation, social investment, or the exercise of representative democracy, could be
temporally different but always under the
vigilance and control of the justice system.
In this way, path E paves the way to a type
of spatially and temporally exceptional state.
In the literature on state-building in transitional contexts, state formation is always presented as a process whose objective consists
of creating an effective state that imposes
itself on powerful actors who question its
power. This means that in general, it collides
with the objective of achieving an institutional framework characterized by legitimacy
and legality. The National Consolidation
Plan, formed some years ago in Colombia
with the idea of bringing the State to peripheral territories affected by the armed conflict, seems to obey this supposition (Garca
Villegas & Espinosa Restrepo 2012; Palou
2011). However, the collision between these
two objectives is not inevitable. Our hypothesis is that the strengthening of local justice
can serve as a bridge for the concomitant
achievement of both purposes.
Our hypothesis is supported by the fact
that justice has the ability to domesticate
the force necessary for the State to impose
itself on armed actors who operate in an
area. In this process of the domestication
of force, justice provides legitimacy to the
State imperium. It is improbable that in this
early stage, all expressions of the social rule
of law are present. The defense of social
rights or participatory democracy, for example, requires a degree of institutional development that it is not possible to achieve in
those initial moments. However, nothing
impedes justice from accompanying this first

state intervention. This is not only possible

but also limits the use of force and submits
the coercive power of the State to the constitution and the law.
Justice has strong links to the two sides of
the tension that we have been analyzing
efficacy and lega-timacy. On the one hand,
it moderates the force of efficacy by submitting the States need to impose itself on
enemies to legal requirements. On the other
hand, by avoiding the violation of human
rights through the use of force, justice has a
legitimizing effect on state action. This effect
comes not only from the legality imposed by
justice, but also from the democratic character of judges and from the fact that they
are defenders of the constitution and of law,
which are essentially democratic normative
parameters.
In addition, the judge not only provides
legitimacy to the state-building process, but
also offers efficacy by contributing to the
overcoming of social conflicts. When a conflict must be mitigated, state intervention
should target the pacification of social relationships. In that sense, a justice system that
manages to resolve daily conflicts (like neighborly issues, or property claims, etc.) also
helps to construct the social fabric necessary
for the State to operate normally. In a postconflict phase, one of the first steps should
be to establish successful conflict resolution
mechanisms.
To conclude, we would like to note (albeit
tentatively, as this topic requires greater
research and reflection) that local justice in
the post-conflict phase needs at least four
conditions to achieve its proposed objectives.
First, justice-related public policy should
adopt a regional focus. Colombia is a socially,
culturally, and geographically complex country, which requires a similarly area-specific
approach to policy. Justice-related public
policy should take local justice demands
into account, as well as institutional capacity, cultural traditions, the legacy of conflict, and geographic space. Regional studies
must be conducted to identify these justice

Garca-Villegas and Espinosa: The Geography of Justice

demands (frequent conflicts, motivation to

adopt different models, etc.) and, depending
on these needs and contextual limitations
(institutional, cultural, economic, etc.), specific policy should be adopted in response to
the demand. The one size fits all approach
should be replaced by a focus on multiple
sizes and models that integrate Colombias
regional diversity. Path E is therefore not an
immobile path. By combining efficacy with
lega-timacy, the path can in some cases be
closer to the axis of efficacy while in others
be closer to that of lega-timacy.
Second, a regional focus on justice
requires modifications to the center of justice administration the central state in
Bogota. Colombian justice is too inbred, and
lacks technical competency and accountability. The Judicial Council should be more
plural, open, and managerial in order to be
more democratic, accountable, and thereby
more legitimate in the eyes of the citizenry.
In addition, the evaluation and design of policy should have its technical foundations in
quantitative and qualitative data.
Third, the abilities of judges who work
in peripheral areas must be strengthened.
Justice administration has traditionally sent
judges with the least knowledge and experience to the peripheral areas of the country, particularly in conflict-ridden areas.
However, the opposite should occur, as it is
precisely those locations that need the most
able judges who can contend with difficult
problems. In addition to the creation of new
offices and positions, a new incentive system
must be established to stimulate qualified
people to work in these regions. In addition,
the justice system should employ managers,
psychologists, sociologists, social workers,
and others who are essential in identifying
and addressing conflicts in an efficient and
effective way.
Fourthly, the term justice system should
be understood broadly. This is a corollary of
the points above. The systems institutional
capacity must be strengthened (conditions 2
and 3) but with a regional focus (condition 1).

Art.41, page 17 of 21

This implies that it is possible to conceive of

local justice institutions that are not exactly
the same as those that operate in the capital of the country. The debate between formal and informal justice could thereby be
overcome by a harmonious collaboration
between the two. The justice system should
allow for justice standards and informal local
procedures (giving equal responsibility to
local leaders or conciliators) that are both
democratic and efficient, to continue operating and resolving conflicts. In these cases, the
task will consist of coordinating standards
and procedures with other state entities.20
We believe that a justice system that adopts
these four principles can usefully serve as a
hinge between two objectives that can be
contradictory in conflict contexts: building
peace and building the State. The challenge
consists in creating innovative policies that
brings the four principles together. We believe
this to be possible only when a constructivist
vision of the problem is adopted, and when
there exists a fair medium between favoring
all contexts and realities (and saying that the
law should adapt to reality) and imposing an
ideal vision of justice without reservations.
Competing Interests
The author declares that they have no competing interests.
Funding Statement
Part of this research was funded by The
Kingdom of the Netherlands.
Notes
1
Arendt had v ictims of totalitarian states
in mind (1982). However, the vulnerability that characterizes the absence
of the right to have rights also occurs
when there is no institutional presence
or when institutions are captured by illegal actors. Dignity and other rights are at
risk when the State is too strong or too
weak when it acquires totalitarian traits
or when it loses its capacity to uphold
rights.

Art.41, page 18 of 21

Garca-Villegas and Espinosa: The Geography of Justice

To control for differences in population

and extension of territory, we calculated an indicator of presence by making the municipalities equal, assuming
that all have 100,000 inhabitants and
are 100km.2 We also focused on lowhierarchy judges who should be present
in the entire territory no matter the size
of the municipality.
3
We built categories based on the average,
and on distances with respect to the average in standard deviation units.
4
It is important to take into account the
variable of institutional design. The magistrate election system favors the formation of roscas or chains of sycophantism
in the judicial branch, in addition to a
lack of accountability. Tribunal magistrates are elected by magistrates in the
high courts based on lists compiled by
the Administrative Court of the Superior
Council (whose members are elected,
in turn, by the high courts). This roscograma or sycophantic network is reproduced at the local level due in part to the
provisional nature of some offices. Given
that tribunal magistrates directly name
provisional judges, there is a higher risk
of reproduction of the network in areas
with high rates of provisionality.
5
We understand provisional to be any
judicial office that for a variety of
reasons is not occupied by a representative assigned to the post by virtue
of the judicial career track. We do not
include decongestion offices because
by definition, they tend to be occupied
by provisional representatives and do
not exist in all parts of the country.
6
If the number of decongestion offices is
included, the statistic is even more alarming, because the percentage of provisional justice posts at the national level
increases to 39 per cent.
7
The first stage in this research consisted
of compiling all statistical information
available, and conducting the first investigation of how different entities in the
2

judicial branch collect and systematize

information. Unfortunately, at the end of
this first stage, we concluded that we could
not use information from the Superior
Judicial Council about entries and exits
for different types of processes (administrative, ordinary, criminal, disciplinary)
because the data collection methods were
not very trustworthy. We therefore chose
to use information from the SPOA, the
Attorney Generals Offices information
system which, although it has some weaknesses, is the least problematic of all.
8
The formula we used was as follows:
Total sentences i - (Total entries i -Total sentences i ) .
Total entries i

This equation provides a cluster of val

ues on a scale of 1 to 1 as results, in
which 1 represents the municipalities
where there was not even one sentence
passed for all of the cases entered. 1 represents the municipalities in which there
were sentences for all of the entries, and
0 represents municipalities in which sentences were made for half of the entries.
For more information about the construction of the indicator, see the work
of Leopoldo Fergusson, Juan Fernando
Vargas, and Mauricio Vela, from which
we took the idea about formulation
(Fergusson, Vargas & Vela 2013).
9
This allows us to control the fact that the
criminal accusatory system has become
valid gradually over the territory.
10
It is important to note that the categories
we used to group the municipalities were
constructed based on the results that
the municipalities had in the indicator,
not on the maximum results possible. In
no municipality of Colombia were more
than 40 per cent of entered cases sentenced between 2005 and 2011.
11
The formula we used was the following:
Total sentences i - (Total entries i -Total sentences i )
LJI i = 0.6

Total entries i

Number of judges i 100,000

(
)
Total populationi

+ 0.4

Extensioni

Garca-Villegas and Espinosa: The Geography of Justice

We normalized and redefined the presence indicator on a scale from 0 to 100.

The corrected efficacy indicator, which
previously went from 1 to 1, was also
recoded on a scale from 0 to 100.
12
This is of course due to the way we constructed the indicator, which groups
municipalities according to how different
they are from the average.
13
The variables of coca crops and forced
displacement show the municipal average of each variable between 2005 and
2011, with the goal of making a homogeneous comparison with the justice
indicator. The source on coca crops is
the registry conducted annually by the
UNODC through the Integral Illegal Crop
Monitoring System. The displacement
data come from the journal of the Vice
Presidents Office and correspond to the
number of displacements according to
the municipality from which the person
was expulsed. The presence of illegal
groups comes from a database created
by the CERAC (Restrepo, Spagat & Vargas
2006). The period of the variable is 2000
to 2012. For the presence of paramilitaries and BACRIM, two different periods
were analyzed: for the paramilitaries,
from 2000 to 2006 and for the BACRIM,
from 2007 to 2012. The illegal mining
data are the product of research by the
Peoples Ombudsmans Office three years
ago (2010). The data on indigenous and
Afro-Colombian people come from the
2005 census created by the DANE.
14
To calculate the quantity of illegal crops
in a municipality, values were taken from
2005 to 2011 and the average was found.
Density corresponds to the relationship
between cultivated hectares and coca per
kilometer squared. A crop density value of
12 hectares per square kilometer means
that in this area 12 per cent of each kilometer is used for coca cultivation.
15
The rate of displacement per 100,000
inhabitants in the period 20052011 was
taken as a reference.

Art.41, page 19 of 21

Balakrishnan Rajagopal (2008) has stron

gly criticized the discourse on rule of law
as a strategy for the construction of institutions in the post-conflict phase. In general terms, he sustains that the discourse
on rule of law is seen as a technical,
judicial, apolitical discourse that ends up
being useful to escape the political discussion. When people appeal to this discourse, they hide contradictions between
different public policy agendas, such as
development and human rights agendas,
or security and human rights, which cannot be resolved simply by invoking the
rule of law as a mantra. The discourse on
the rule of law hides commitments that
should be made between these agendas
in order to reach these valid goals. We
believe that this criticism is true but does
not necessarily imply that the discourse
should be abandoned. Rather, it should
be conceptualized and examined for
specific tensions that could be found in
its interior. We accept Rajagopals invitation to break down what we understand by rule of law and accept even
if not completely the tensions between
efficacy, legitimacy, and legality in the
Colombian case.
17
It is also worth noting that, analytically,
legality and legitimacy are two different
things. See Bobbio (2005) and Ost and
van de Kerchove (2001).
18
Some Scandinavian countries are close to
this case (Munck 2009).
19
It is possible to have an effective state
(here we adopt a minimal, almost
Hobbesian, concept of efficacy and as a
result, we are not referring to administrative or governmental efficacy) that is neither legitimate nor legal. There can also
be a legal state with deficiencies in terms
of legitimacy, but it is not possible to
find a situation in which democracy and
legality exist without an effective state.
There can of course exist a lack of all elements, as in areas dominated by armed
actors who challenge the State, where
16

Art.41, page 20 of 21

Garca-Villegas and Espinosa: The Geography of Justice

there is no democratization or protection of rights. Someone could state that

armed actors, when they impose order
and security, are guaranteeing rights.
However, we dismiss this possibility and
sustain that law cannot be guaranteed by
illegal means.
20
A recent report indicates that the FARC
have begun to cede their guerrilla justice
administration system to the community
action boards (JAC by its Spanish acronym) of the areas where they have influence (2015). It would be an error for the
State to impose upon the JAC justice system without first evaluating its strengths
and weaknesses, and considering ways
to coordinate it with more formal justice
procedures.
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How to cite this article: Garca-Villegas, M and Espinosa, J R 2015 The Geography of Justice:
Assessing Local Justice in Colombias Post-Conflict Phase. Stability: International Journal of Security &
Development, 4(1):41, pp.121, DOI: http://dx.doi.org/10.5334/sta.gc
Published: 24 July 2015
Copyright: 2015 The Author(s). This is an open-access article distributed under the terms of the
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